Coronavirus isn’t the Only Infection to Worry About Right Now, by Lance Caughfield, Appellate Advocacy Blog

Mr. Caughfield reports that the Texas Office of Court Administration was attacked by ransomware in May. According to Mr. Caughfield, Texas refused to pay the ransom and shut down their systems. They are doing their best to work around the problem.

In my state, we have had our share of navigating changing rules and procedures due to COVID 19. I cannot imagine the disruption caused by attacking the court’s online systems. Imagine trying to find out the status of your case using social media.

Mr. Caughfield, a former IT professional, gives insight about how ransomware works and what we can do to keep our computer systems safe. It is excellent advice and well worth the read. -CCE

What is hyperbole anyway? Here’s a quick example. How would you respond as opposing counsel to a statement that there are “countless obvious examples” of the opposing party’s errors? Perhaps, something like, “Oh really?” “Countless and obvious, you say? How interesting that you did not name anything specific. We did what any reasonable company would do in a similar situation.” And, then you must explain what you meant all over again – if you get the opportunity.

Simply put, hyperbole is deliberate exaggeration. Although often misguidedly used for emphasis, rhetoric, or even sarcasm, you invite an attack to prove your statement. At best, you may have illustrated that the other side’s behavior is outlandish. At worst, you have lost credibility with the court because you are unable to back up your statement with hard facts. Never imply a promise that you cannot deliver.

This is a good time to remember that your writing is more persuasive when you show, don’t tell. If the opposing party has behaved beyond the pale, telling the court or the jury what happened (who did what to whom and why) will be more persuasive than rhetorical outrage.

You will find in legal blogs on the use of hyperbole. This post is one of my favorites. As always, there is the bonus of hyperlinks to posts on similar subjects at the bottom of the page. -CCE

States have already made the leap to provide free access to cases on their judges’ dockets. You can read all documents filed by the parties and the assigned judge, the date of any hearing or trial date and their outcome, and access every document (for the most part) filed with the all state courts. Not so with the federal district, appellate, or bankruptcy courts. Your only access is through PACER, a completely different system.

The proposed Electronic Court Records Reform Act is long overdue and removes the fee to access these documents. -CCE

“The suite consists of new and enhanced products fueled by smart content from Lexis Advance and the strategic acquisitions of Lex Machina, Intelligize and Ravel Law, and integrates the most powerful technologies in the legal space, including machine learning, artificial intelligence (A.I.) and visualization tools.”

Interestingly, Thomson Reuter launched Westlaw Edge, West Search Plus, Analytics, Enhanced Citator and More, on the same day as the Lexis Advance launch. Joe Hodnicki believes that Westlaw Edge is more powerful and stiff competition to Lexis Advance. Those of you who use these products, what do you think? -CCE

Like many firms, we do not keep a hardback or soft back set of the Federal Rules of Civil Procedure because we can access them for free online. I usually go to the Cornell Law Library Institute for federal statutes and court rules for statutes and court rules. After finding this website, I’ve changed my mind. It is amended through December 1, 2016. It also includes links to the Federal Rules of Evidence, Federal Rules of Bankruptcy Procedure, Federal Rules of Criminal Procedure, and the U.S. Bankruptcy Code. So far, I haven’t seen anything not to like. -CCE

Ambrogi includes a link to all states that have adopted an ethical duty of technology competence. My state is not yet one of them, but there is still no excuse.If your state has not yet adopted this ethical requirement, it is only a matter of time.

I know there are so much technology out there that it is hard to know exactly what you’re supposed to know and what you can pass by. But it’s your duty to find out, and not rely on staff to do it for you. -CCE

As I continue to track the states that have adopted the ethical duty of technology competence, I have two more to add, bringing the total to 23.

Under Federal Rule of Civil Procedure Rule 34(b)(2)(E)(i), a party ’must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request.’

A Plaintiff brought a motion to compel the opposing party to organize and label their production to correspond to the categories in the Plaintiff’s Requests for Production. Things did not go well for the Plaintiff’s motion. . . .

With the Super Bowl on the horizon comes the case of first impression of Feleccia v. Lackawanna Coll., No. 12-CV-1960, 2016 WL 409711 (C.P. Lacka. Co. Feb. 2, 2016 Gibbons, J.), in which Judge James A. Gibbons of the Lackawanna County Court of Common Pleas was faced with the issue whether two junior college students who were injured at a preseason football practice were barred from recovering against the college because both signed waivers of liability prior to their injuries. . . .

In a recent post, I talk about an update to OSCN, Oklahoma’s website to access Oklahoma appellate and district case law. I recently learned about another tool, Legal Alerts, that performs an extremely valuable service. If you subscribe to Westlaw or Lexis, you may already have this feature.

Not all firms subscribe to Lexis or Westlaw, however. The price of both can be prohibitive for some smaller and solo firms. If you practice in Oklahoma, I strongly urge you to investigate Legal Alerts.

There are various ways to use Legal Alerts. Here is an example. Have you ever had a case where opposing counsel simply “forgot” to mail you a copy of a document they filed with the court. With Legal Alert, you are notified by email every time any case within OSCN is filed in which your client has been named. You will learn of filed pleadings, orders, or other documents filed in the case before the copy has arrived in the mail.

The web site does a better job of explaining all of its components better than I can. As fair disclosure, Shawn Roberts, the co-founder of Legal Alerts, is also the managing partner of the firm where I work. Feel free to contact Shawn Roberts with your questions. -CCE

Legalized Software, LLC, the creator of ‘Legal Alerts’ announces an expansion of its existing service to include ‘Name Search.’ Name Search will expand our audience beyond lawyers to include journalists and other professionals that track court cases based on particular persons or businesses. Name Search allows for our clients to track new case filings that involve a particular persons or businesses by name. Legal Alerts monitors cases on the Oklahoma State Courts Network (OSCN) and emails case updates to subscribers.

‘The capability of receiving automatic updates from the Oklahoma State Courts Network about individuals or businesses in your inbox has been a highly requested feature and a great addition to our offering’ Says Co-founder Shawn Roberts. Adding to its already formidable feature set, Legal Alerts users can now track people or businesses by name. Simply enter a name and receive an email update when a new case is filed with that person or business. Read more about Name Search at http://legalizedsoftware.com.

Legal Alerts is a monthly subscription service with plans to fit the needs of any size law practice with plans starting at $10.00 a month. The Name Search feature is available immediately for current Legal Alerts subscribers at no additional charge. . . .

Right now I’m working on a personal injury case where a couple got rear-ended. They, and their passenger, were injured. One of my clients has two herniated discs is his low back, which is a serious and very painful permanent injury. Initially, they tried to negotiate and handle the case themselves, because they thought the liability insurance company would “do the right thing”.

Not so much. They got frustrated and came to me a year later, after really mis-handling their own claim. Now, about another year later, I’ve about got the mess they created straightened out and am able to reach a settlement which more closely resembles reasonable compensation.

So, Here are a few reasons to at least consult a lawyer immediately after getting injured, and BEFORE talking to an insurance liability adjuster.

Yesterday marked the beginning of a new era for those who file civil cases in the Southern District of New York (S.D.N.Y.). Considering its status as one of the nation’s oldest, most prestigious Districts Courts, with a corresponding docket full of high-profile civil (and criminal) cases, the change from ‘paper filing’ to electronic filing is an important one. The announcement that the District would be going to electronic filing was in itself a bit surprising, considering that the clerk’s office and judges had resisted the temptation for many years. But change is constant, and starting yesterday [June 9, 2015], filing civil cases in the S.D.N.Y. will be done electronically in the vast majority of cases. . . .

From the pleas of Abraham on behalf of Sodom and Gomorrah1 to the appeals of Voltaire2 and Zola,3 intercessors for humanity4 have called for mercy and justice.5 In the legal system, such intonements have taken on the form of specialized briefs called amicus curiae (‘friend of the court’).6 And through extension and by complement they have appeared in the form of law reviews, media articles, exposes, and books.7 Indeed, there is an oscillating relationship between amici and law reviews, which has been beneficial for scholarship and public discourse. In the end, it is the passion for justice that drives individuals, governments, academics, lawyers, journalists and other interested groups to befriend the courts.8

The amicus has the power to speak to many audiences simultaneously. In the courtroom, it is the honest broker; in the public media, it is the educator; in academia, it is scholarly analysis and historical perspective. Bounded by common law, court rules, and the conventions of publishing (briefs, articles or books), the amicus can yet move knowledge into venues where it is most needed. An amicus can serve as an ‘oral shepardizer,’ expert witness, or quasi-litigant that extends the range of judicial notice and culls, concentrates and vets information into a case-specific resource.9

Still, there is a tension between the role of the amicus as independent expert offering facts and a party arguing an agenda, which can ultimately impact the quality and constitutionality of decision-making.10 . . .

Georgetown Law has announced that it has teamed up with law firms DLA Piper and Arent Fox to create a new nonprofit law firm designed to help low-income individuals with their civil law needs. Named the D.C. Affordable Law Firm (DCALF), it will be a nonprofit low bono law firm that will provide affordable, high quality legal services to D.C. residents who do not qualify for free legal aid and to small businesses and nonprofits in the District. The anticipated opening date is October 2015. . . .

There are many really superb experts in legal writing. Mr. Sirico is one of them. Mr. Sirico has provided us with a link to not one, but all of Mr. Gopen’s legal writing articles published in Litigation since 2011 to date. Do not lose this, and save under “must read”! -CCE

George Gopen has been writing columns on legal writing for “Litigation,” the magazine of the ABA Section on Litigation. You can access them here.

I cannot speak too highly of George’s work. Years ago, I attended one of his workshops and discovered a new way to think about writing. I have passed the lessons down to my students, and now, even years after they graduate, they tell me how greatly those lessons transformed their writing and contributed to their success.

You pick up your phone and say ‘OK Google’… and then what? Your phone is listening. The microphone icon is pulsing. What do you say to your phone? What can you say to it? Google Now’s voice function has become surprisingly robust over the years.

Here’s a list of just about everything you can say to Google Now. Try experimenting with different phrasing, you’ll be surprised how much it understands. The part of the phrase in [brackets] can be replaced with any similar term you choose.

If Google Now doesn’t get your spoken commands right, you can correct it by saying ‘No, I said…’ and trying the phrase again. . . .

One of the conceits of writing is the perception that when you’ve written on something, it’s behind you. Not that nothing else need be said on the topic, but only that it need not be said by you. That’s silly for a host of reasons. I started writing the print version of Ball in Your Court ten years ago–before the 2006 Federal Rules amendments and before the EDRM. Half my readers weren’t in the field then, and veteran readers surely missed a few missives. Plus, if the point was worth making, perhaps it bears repeating. So, I now revisit columns and posts from the primordial past of e-discovery–starting over as it were, updating in places, and hopefully restarting a few conversations. As always, your comments are gratefully solicited.

Knowing how to use book s is still one of them according to a new article by Professor Patrick Meyer, Director of the Law Library at Detroit Mercy School of Law. The article, called Law Firm Legal Research Requirements and the Legal Academy Beyond Carnegie, is available at 35 Whittier L. Rev. 419 (2014). From the introduction:

According to quantitative research conducted by Thomson West (now Thomson Reuters), new associate attorneys can expect to spend 45% of their time conducting research. Yet despite this high percentage, criticism of the research abilities of new associates persists. . . .

There have been a handful of important recent studies on practice skills that post-date the Carnegie Report, and they are reviewed in this article. All of these studies support a stronger emphasis on legal research training in law schools, and all but one either suggest, or directly call for, an integrated approach where some tasks are taught in both the online and print formats. All but one of these studies surveyed practicing attorneys. . . . All of these studies show that legal academia must devote more time to teaching legal research, and all but one support my conclusions: that attorneys still use books to conduct research, book usage occurs much more than most people think, and law schools need to teach both online and print-based research for some tasks.

New attorneys frequently lack basic knowledge of how to use research resources, yet this knowledge is the link between legal research and legal analysis. . . In short, law schools can do a better job at teaching legal research.

Part II of this article begins with a brief review of the history of legal research deficiencies in the law firm setting and progresses to a summary of several new studies on law firm research practices and abilities. . . . In Part III, I propose a three-part plan to remedy the lack of research acumen amongst new attorneys. First, law schools must assure that all students receive an appropriate amount of basic research instruction in the first year curriculum, to include some print-based research instruction. Second, Advanced Legal Research must be a required course. Finally, I would like to renew the call to include a research component on each state’s bar exam. [Emphasis added.]

Like this:

If you want to set these up for yourself, click on “Insert,” go to “Symbol,” click on “More Symbols,” and “Options.” Use the “Shortcut” key to set up your own abbreviations for whatever symbol you want. For example, I use ALT “S” for the section sign and ALT “P” for a paragraph symbol. -CCE

Today, rather than attempting to write a semi-brilliant blog post because, quite frankly, I’m not feeling all that semi-brilliant, I’m sharing some incredibly cool keyboard hacks for savvy legal people everywhere.

Read them. Test them. Love them. (I know I do…)

For the record, you are simply pressing and holding the “ALT” button, then entering the number code listed below for each of these hacks. DO NOT press the + key. (Just ALT and the number. Got it? Here goes…)

My son’s apartment in Chicago was burglarized and ransacked over the weekend while he was here in Austin. The thieves climbed up and forced the patio door. It’s a reminder of the disparity between our perception of security and its reality. Who among us is protected by more than a pane of glass and the fervent hope that someone is looking, listening and caring enough to intervene? A locked door little deters a determined intruder. Mostly, we stave off opportunistic threats of the sort that move on to easier pickings when the doors are locked and the lights are on.

In the context of data breach, I’ve often laughed at big companies who attribute intrusions to “ultra-sophisticated hackers and coordinated attacks.” When you hear such claims, know they mean little with respect to the difficulty of the hack. Big companies say such things because no one wants to admit that…

If you still think that Facebook allows you to have control over your privacy and no one is collecting your data, I have a dry well in Oklahoma that I know you’ll just love. Call me. -CCE

In fact, Facebook doesn’t think it would make sense to let users do that.

‘With most online services, there’s an understanding that when you use those services to share information, you’re also sharing information with the company providing the service,’ said Matt Scutari, manager of privacy and public policy at Facebook.

‘For users who are truly concerned with sharing their information with a particular platform, honestly, you might not want to share information with that platform,’ he said, speaking during a conference on digital privacy in Palo Alto, California, on Friday.

‘I don’t think there are many services out there who could claim they’re not using your information that you’re sharing with them for any purpose. They have to at least use that information to provide the service,’ he added.

Scutari was responding to a question from the audience about what tools, if any, Facebook might provide to people who want to post and share information but keep it from Facebook itself.

Lately, the company has been trying to improve its controls for sharing among friends. In September it introduced a ‘privacy checkup’ feature. And just this week it released a revamped privacy policy designed to be easier to use. The company also gives users information about how their data is used for advertising. But it has never offered users tools to limit what data Facebook can ingest when they share.

Data collection—what companies collect, and how it’s used—is an area of concern for Internet users in general, highlighted by some dramatic findings in a recent Pew survey. . . .

Changing laws to make it more difficult to sue physicians for medical malpractice may not reduce the amount of ‘defensive medicine’ practiced by physicians, according to a new RAND Corporation study.

Studying the behavior of emergency physicians in three states that raised the standard for malpractice in the emergency room to gross negligence, researchers found that strong new legal protections did not translate into less-expensive care.

The findings are published in the Oct. 16 edition of the New England Journal of Medicine.

‘Our findings suggest that malpractice reform may have less effect on costs than has been projected by conventional wisdom,’ said Dr. Daniel A. Waxman, the study’s lead author and a researcher at RAND, a nonprofit research organization. ‘Physicians say they order unnecessary tests strictly out of fear of being sued, but our results suggest the story is more complicated.’

It is widely said that defensive medicine accounts for a substantial part of the hundreds of billions of dollars of unnecessary health care spending that is estimated to occur annually in the United States. Malpractice reform has been advocated by many experts as a key to reining in health care costs.

RAND researchers looked at three states — Georgia, Texas and South Carolina — that about a decade ago changed the legal malpractice standard for emergency care to gross negligence. Other states use the more common ordinary negligence standard, or a failure to exercise reasonable care.

The higher standard means that for physicians accused of malpractice in the three states examined, plaintiffs must prove that doctors consciously disregarded the need to use reasonable care, knowing full well that their actions were likely to cause serious injury. . . .

You know it, and I know it: A good lawyer can be expensive. With all of the companies out there that are providing fill-in-the-blank, do-it-yourself Wills and other estate planning documents on the cheap, it may be awfully tempting to try to save money using them. Many start at only around $100.

In some instances, using estate planning software or websites may actually be a good idea. For example, if you have a very simple estate plan with no estate tax issues, and you are leaving the bulk of your estate to your spouse or kids, you should consider it.

All estate planners and estate planning experts agree that any Will, even a fill-in-the-blank, do-it-yourself Will, is almost always better than not having one at all, especially if your family and financial situation is basic and straightforward. However, you need to make sure that if you do your own estate…